Statement of Work

Version 2.8 (January 2017)

Notice

This document is the property of, and is proprietary to, Zend Technologies, Inc. (“Zend”). It is not to be disclosed, in whole or in part, without written authorization from Zend.

Trademarks

Any product names mentioned in this document may be trademarks or registered trademarks of their respective companies and are hereby acknowledged as such by Zend.

1. Scope

The Zend Premium On-boarding is a great jump start to help organization getting seamlessly started with the Zend software stack. It consists of 4 consecutive consulting days which will be deliverey either remotely or onsite.

Following is the proposed project plan for the customer:

I. Zend Server Cluster Deployment

Discovery and deployment design

Setup and configure the PHP Cluster

Deploy Zend Server nodes

II. Zend Server configuration and optimizations

Application Monitoring and escalation rules

Code tracing and transaction visibility

PHP engine and Web Server optimizations

III. Team Education

Zend Server administration mentoring

Hands-on PHP Cluster management

If time permits, some of the following topics might also get addressed:

IV. Advanced Concepts

Introduction to Caching and performance optimizations

Automation and DevOps best practices

Assessment of performance and scalability

Introduction to Deployment automation

2. Deliverables

At the conclusion of the engagement, Zend will provide:

One (1) soft copy of the management summary report

3. Roles, Responsibilities and Expectations

In order to successfully complete the project, it is important that roles and expectations are clear to both Client and Zend staff. These expectations are outlined below. Where appropriate, a single individual may fill several of the roles listed below. Zend reserves the right to use subcontractors in those roles it deems appropriate. Use of any subcontractor does not relieve Zend of any of its obligations as set forth in this SOW.

The Client is expected to provide, as needed, either prior to or at the commencement of the engagement:

A sponsor or project lead who is responsible for directing the activities of the consultant and ensuring results are delivered per expectations

Access to application production and staging servers by Zend for the purpose of delivering the service.

Someone readily available (Project Sponsor or Project Manager) to Zend who is familiar with the project, this SOW, and Zend’s Agreement with the Client to resolve issues and facilitate communication

Product knowledge or information to the Zend resources on products that are required for development, maintenance and support activities

Adequate translation to Zend staff of any product, documentation, or other resource which is required by Zend to engage in development, maintenance, or support activities

Identification of a technical resource that will be the primary point of contact for this project and provide resolutions to technical queries related to Zend

Provide stable VPN connectivity between Zend and the systems where development collaboration took place

The Client will provide to Zend acceptable secure means (i.e. SSH) for free communication with the outside network for the purposes of communicating and accessing other resources both internal and external to Zend for the purposes of completing this project

4. Assumptions

To facilitate the smooth delivery of this engagement, the following assumptions apply:

The Client will provide the staff and resources as described in Section 3, Roles, Responsibilities & Expectations

The engagement will begin at a date to be determined and negotiated between Zend and the Client and after receipt of a signed purchase order.

All fees generated from work performed under this SOW will be considered earned as the work is completed.

Zend and the Client agree to collaborate and follow a change management process to evaluate an appropriate course of action if it is determined that Zend will incur costs in excess of purchase order due to changes in Client requirements.

Zend will notify the Client in writing if Zend believes inadequate attention or personnel are being devoted to the project. The Client agrees to address these deficiencies within 5 days of receiving written notice.

Should any of these assumptions prove to be incorrect or incomplete, Zend reserves the right to modify the scope, schedule or price as documented in this SOW.

5. Project Pricing and Payment

The price for this engagement is as follows:

Item

Price

Zend Premium On-boarding

(as stated in the quote that refers to this SOW)

5.1 Payments

The above fees shall be due and payable as follows:

50% upon signing of this SOW

Balance plus Travel & Expenses due monthly based on work performed with the full balance due upon completion or expiration of the Engagement.

Upon execution of this SOW, Client shall issue a PO for the Engagement and Rogue Wave shall issue invoices against the PO in accordance with the payment schedule set forth above. Client shall pay correct and undisputed invoices on a net thirty (30) day basis. Late payments, other than those disputed in good faith, shall bear interest at lesser of one and one-half percent (1.5%) per month or the highest amount permitted by applicable law.

If Client disputes any invoiced amount for any reason whatsoever, Client shall notify Rogue Wave in writing (via email shall suffice for this limited purpose) within thirty (30) calendar days of Client’s receipt of the invoice. All disputed amounts that Client subsequently agrees in writing to pay, or that are required to be paid pursuant to a proper court order or award from any mutually submitted arbitration, shall be paid on the payment terms set forth in Terms above.

Please remit payment to:

Rogue Wave, Inc.

1315 West Century Drive, Suite 150
Louisville, CO 80027

5.2 Expenses

Client is responsible for travel and lodging expenses if and as incurred in the course of this Engagement, as well as all reasonable and necessary expenses Rogue Wave incurs in connection with the services for Client in accordance with Client’s then current practices and/or policies.

Hotel, Air and Car Rental (including Parking) are charged to the Client at actual rates. Air travel shall be coach or economy class for domestic travel. Meals are charged at a flat rate of 56.00 USD per day. Expenses will be itemized, documented and submitted upon completion of the Engagement. Rogue Wave will be solely responsible for any and all taxes that may be due on any payments it receives from the Client.

5.3 Scheduling

Standard scheduling for delivery is generally 4-6 weeks from date of signed purchase order (PO).

The Engagement must be scheduled and delivered within 6 months (if the engagement was not 100% prepaid) or 12 months (if the engagement was 100% prepaid) from the date of signed PO that refers to this SOW. It is the Client’s responsibility to schedule and facilitate completion of this Engagement within the respective number of months from date of signing the PO. In the event this does not occur, Rogue Wave’s obligation to perform the services per SOW is terminated and any prepayment will not be refunded.

Prices are valid for 30 days from the date of this Statement of Work.

5.4 Minimum Billing Fees

Remote consulting deliveries have a four hour minimum billing fee per day. For Onsite consulting deliveries the minimum billing fee is 2 person days plus travel and out of pocket expenses. Scheduled Engagements (of both types) that are not cancelled or rescheduled at least three working days in advance will be invoiced in full for the scheduled time.

6. Terms and Conditions

6.1 Limitation of Remedies and Liability
(A) Zend's services and all deliverables shall be provided on an "as-is" basis and without warranty. Zend specifically disclaims any and all express and implied warranties, including any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
(B) The Client’s sole and exclusive remedies for any breach or failure by Zend shall be to cancel this SOW and engagement and to obtain an equitable partial refund of amounts paid with respect to the defective services or deliverables.
(C) In no event shall Zend be liable to the Client, whether in contract, tort (including negligence) or otherwise, for any indirect, incidental or consequential damages (including lost profit or business interruption) even if Zend is notified in advance of such possibility arising out of the performance or breach of, or otherwise pertaining to the subject matter of, this SOW. Zend shall not be liable to the Client for any direct damages arising out of the performance of this SOW in excess of the payments made by the Client under this SOW.

6.2 Non-solicitation of Employees
During the period of Zend's performance under this SOW, and for one (l) year thereafter, the Client agrees not to hire, solicit, nor attempt to hire or solicit, the services of any employee or subcontractor of Zend without the prior written consent of Zend. Violation of this provision shall entitle Zend to assert liquidated damages against the Client equal to one hundred fifty (150) percent of the solicited person's annual compensation. Nothing contained herein shall preclude the hiring of any employee who: (i) contacts the Client on his or her own initiative; (ii) the Client was in discussion with regarding possible employment prior to the signing of this SOW; or (iii) responds to a general solicitation of employment through advertisements or search firm general solicitations that are not targeted specifically at Zend or its employees.

6.3 Payment and Late Charges

6.3.1 Terms. Upon receipt of a correct and undisputed invoice from Zend, the Client shall pay such invoice thirty (30) days thereafter. Late payments, other than those disputed in good faith, shall bear interest at lesser of one and one-half percent (1.5%) per month or the highest amount permitted by applicable law.

6.3.2 Disputed Amounts. If the Client disputes any invoiced amount for any reason whatsoever, the Client shall notify Zend in writing (via email shall suffice for this limited purpose) within thirty (30) calendar days of the Client’s receipt of the invoice. All disputed amounts that the Client subsequently agrees in writing to pay, or that are required to be paid pursuant to a proper court order or award from any mutually submitted arbitration, shall be paid on the payment terms set forth in Terms above.

6.4.1 The proposal in this SOW expires on the same day as the expiration date that can be found on the Zend quote that refers to this SOW.

6.4.2 The terms of this SOW, when accepted and signed by the Client shall be the entire agreement of the parties and shall supersede and entirely replace the terms of any and all other agreements or forms, including Client purchase order forms, all of which are hereby specifically rejected by Zend.

6.4.3 Zend retains all rights in its intellectual property. The Client’s rights to use any Zend products shall require separate acceptance of Zend's applicable licensing terms and conditions.

6.4.4 The Client has retained Zend as an independent contractor.

6.4.5 Each party represents and warrants to the other that its performance of its obligations under this SOW will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound.

6.4.6 Either party may terminate this SOW if the other party commits a material breach that is not cured within a period of 30 days of written notice sent by the non-breaching party to the breaching party.

6.4.7 The Client may not assign this SOW without the prior written consent of Zend.
Neither party shall be liable under this SOW for a failure to perform arising from causes beyond its reasonable control.

6.4.8 This Statement of Work and Agreement shall be governed by California law. Any proceedings under or in connection with this Agreement shall be brought exclusively in state or federal courts sitting in the Northern District of California.

Note:
Time schedule is based on an assumed start date. Exact start date is yet to be determined. A more specific time line can be interpolated when both Zend and the Client agree to a specific project commencement date.